Mr. Walz of Minnesota
(for himself, Mr. Rooney,
Mr. Denham, and
Ms. Pingree of Maine) introduced the
following bill; which was referred to the Committee on Armed Services

A BILL

To amend title 10, United States Code, to require a
review of the separation of members of the Armed Forces on the basis of a
mental condition not amounting to disability, including separation on the basis
of a personality or adjustment disorder.

1.

Short title

This Act may be cited as the
Servicemember Mental Health Review
Act.

2.

Findings

(1)

Since September 11, 2001, approximately
30,000 veterans have been separated from the Armed Forces on the basis of a
personality disorder or adjustment disorder.

(2)

Nearly all veterans who are separated on
the basis of a personality or adjustment disorder are prohibited from accessing
service-connected disability compensation, disability severance pay, and
disability retirement pay.

(3)

Many veterans who are separated on the
basis of a personality or adjustment disorder are unable to find employment
because of the personality disorder or adjustment
disorder label on their Certificate of Release or Discharge from Active
Duty.

(4)

The Government Accountability Office has
found that the regulatory compliance of the Department of Defense in separating
members of the Armed Forces on the basis of a personality or adjustment
disorder was as low as 40 percent between 2001 and 2007.

(5)

The establishment of a Mental Health
Discharge Board of Review to review the separation of veterans who are
separated on the basis of a personality or adjustment disorder is warranted to
ensure that any veteran wrongly separated on such basis will have the ability
to access disability benefits and employment opportunities available to
veterans.

3.

Department of
Defense review of military separation on basis of a mental condition not
amounting to disability

(a)

Review
required

Chapter 79 of title 10, United States Code, is amended
by inserting after section 1554a the following new section:

1554b.

Review of
separation on basis of mental condition not amounting to disability

(a)

In
general

(1)

The Secretary of Defense shall oversee the
establishment within the Office of the Secretary of each military department a
board of review to review determinations previously made that covered
individuals separated from the armed forces have a mental condition not
amounting to disability. The board of each military department shall be known
as the Mental Health Discharge Board of Review.

(2)

Each Mental Health Discharge Board of
Review shall consist of not less than five members appointed by the Secretary.
At least one licensed psychologist and one licensed psychiatrist who has not
had any fiduciary responsibility to the Department of Defense since December
31, 2001, shall be appointed to the board.

(3)

The Secretary of a military department
shall equip the Mental Health Discharge Board of Review established for that
department with adequate administrative and behavioral health support
staff.

(b)

Covered
individuals

For purposes of
this section, covered individuals are members and former members of the armed
forces who have been separated from the armed forces since September 11, 2001,
because of unfitness for duty because of a mental condition not amounting to
disability, including separation on the basis of a personality disorder or
adjustment disorder.

(c)

Notification of
availability of review

(1)

The Secretary of Defense
shall ensure, to the greatest extent practicable, that each covered individual
receives oral and written notification of the right of the covered individual
to the review by the appropriate Mental Health Discharge Board of Review of the
separation of the covered individual from the armed forces.

(2)

The Secretary of the military department
with jurisdiction over the armed force in which a covered individual served
immediately before separation shall be responsible for providing to the covered
individual the notification required by this subsection. The Secretary of
Defense shall monitor compliance with this notification requirement and
promptly notify Congress of any failures to comply.

(3)

If a covered individual does not receive
notification under this subsection, the covered individual or a surviving
spouse, next of kin, or legal representative of the covered individual may file
a request for the Mental Health Discharge Board of Review to review the
separation of the covered individual from the armed forces.

(d)

Legal
counsel

The notification
required by subsection (c) shall—

(1)

inform the covered
individual of the right to obtain private counsel to represent the covered
individual before the Mental Health Discharge Board of Review; and

(2)

include a list of
organizations that may provide counsel at no cost to the covered
individual.

(e)

Review

(1)

For each covered individual, the Mental
Health Discharge Board of Review shall review—

(A)

the findings of the psychologist or
psychiatrist of the Department of Defense who diagnosed the mental
condition;

(B)

the findings and decisions of the
separation authority with respect to the covered individual; and

(C)

whether the separation authority
correctly followed the process for separation as set forth in law, including
regulations.

(2)

The review by the Mental Health Discharge
Board of Review under paragraph (1) shall be based on the records of the
Department of Defense and the Department of Veterans Affairs and such other
evidence as may be presented to the Mental Health Discharge Board of Review.
The board shall consider any and all evidence to be considered, including
private mental health records submitted by the covered individual in support of
the claim.

(3)

If the Mental Health Discharge Board of
Review proposes, upon its own motion, to conduct a review under paragraph (1)
with respect to a covered individual, the Mental Health Discharge Board of
Review shall notify the covered individual, or a surviving spouse, next of kin,
or legal representative of the covered individual, of the proposed review and
obtain the consent of the covered individual or a surviving spouse, next of
kin, or legal representative of the covered individual before proceeding with
the review.

(4)

After the Mental Health Discharge Board of
Review has completed the review under this subsection with respect to the
separation of a covered individual, the board must provide the claimant with a
statement of reasons concerning the board’s decision. The covered individual
has the right to raise with the board a motion for reconsideration if new
evidence can be presented that would address the issues raised in the board’s
statement of reasons.

(f)

Authorized
recommendations

The Mental Health Discharge Board of Review may,
as a result of its findings in a review under subsection (e), recommend to the
Secretary of the military department concerned the following (as applicable)
with respect to a covered individual:

(1)

No negative
recharacterization of the separation of such individual or modification of the
disability rating previously assigned such individual.

(2)

The
recharacterization of the separation of such individual to retirement for
disability.

(3)

The
recharacterization of the separation of such individual—

(A)

to separation for
disability with entitlement to receive severance pay;

(B)

to separation upon expiration of term of
service; or

(C)

to separation for convenience of the
Government.

(4)

The issuance of a
new disability rating for such individual.

(g)

Compliance with
administrative procedure act transparency requirement

If the Mental Health Discharge Board of
Review does not recommend under subsection (f)(2) a recharacterization of the
separation of a covered individual to retirement for disability, the Mental
Health Discharge Board of Review shall include a brief statement of the reasons
why such a recommendation was not made. The recommendation and, if applicable,
the brief statement shall be mailed to the covered individual or a surviving
spouse, next of kin, or legal representative of the covered individual.

(h)

Correction of
military records

(1)

The Secretary of the
military department concerned shall correct the military records of a covered
individual in accordance with the recommendation made by the Mental Health
Discharge Board of Review under subsection (f). Any such correction shall be
made effective as of the date of the separation of the covered
individual.

(2)

In the case of a covered individual
previously separated with a lump-sum or other payment of back pay and
allowances at separation, the amount of pay or other monetary benefits to which
such individual would be entitled based on the individual’s military record as
corrected shall be reduced to take into account receipt of such lump-sum or
other payment in such manner as the Secretary of the military department
concerned considers appropriate.

(i)

Regulations

(1)

This section shall be
carried out in accordance with regulations prescribed by the Secretary of
Defense.

(2)

The regulations under paragraph (1)
shall specify reasonable deadlines for the performance of reviews required by
this
section.

.

(b)

Clerical
amendment

The table of sections at the beginning of such chapter
is amended by inserting after the item relating to section 1554a the following
new item:

1554b. Review of separation on basis of
mental condition not amounting to
disability.

.

(c)

Implementation

Not later than 90 days after the date of
the enactment of this Act, the Secretary of Defense shall require the
establishment of the Mental Health Discharge Boards of Review required under
section 1554b of title 10, United States Code, as added by subsection (a) and
prescribe the regulations required by subsection (i) of such section.